Constitutional Change, Courts, and Social Movements

Authors

Douglas NeJaime, Loyola Law School, Los Angeles

Abstract

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts.

Recommended Citation

Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 Mich. L. Rev. 877 (2013).
Available at: https://repository.law.umich.edu/mlr/vol111/iss6/4